Monday, October 15, 2012

Summary of points raised and findings recorded by the Madras High Court on the setting up of Human Rights Courts

Summary of points raised
and findings recorded by the Madras
High Court on the setting up of Human Rights Courts

Sl No.

Points

Findings of the Court

1.

Whether it can on the face of the
statutory provisions under Section 2(1) (d) defining
`Human Rights' and Section 30 of PHRA dealing with constitution of HRCs for
trial of offences, arising out of violation of `Human Rights' - be stated
that there is no clear guidance in PHRA as to what can be regarded as
`offences arising out of violation of Human Rights'?

There is a clear guidance in PHRA as to
what can be regarded as as `offences arising out of violation of `Human
Rights'.

2.

Whether there is any need or desirability
to amend PHRA and specify the offences, arising out of violation of Human
Rights, which can be tried by HRCs?

There is no need or desirability to amend
PHRA and specify the `offences' arising out of violation of `Human Rights',
which can be tried by HRCs.

3.(a)

Whether all refractions or violations of
`Human Rights' embodied either in International Covenants or in the
Constitution are enforceable by Courts?
and

It is only such violation of `Human
Rights' as embodied in International Covenants, treaties, etc., either
incorporated in the Constitution, as justifiable right or incorporated or
transformed in the municipal law, at the instance of the instrumentalities of
the State that got attracted the jurisdiction of the High Court under

Article 226 or the Supreme Court under
article 32 of the Constitution. The violation of such rights, if occurred at
the instance of private individuals, there is no other go for the affected
individual, except to seek his remedies under the ordinary law of the land.

Whether all such violations or
refractions amount to `offences', giving rise to a cause of action for
initiation of prosecution proceedings before a HRC?

In the light of the definition of
`offence', as contained in Section 2(n) of the Code, `offence' arising out of
violation of `Human Rights', as mentioned in Section 30 of PHRA, in the
context of the definition of `human Rights' in section 2(1) (d) of PHRC,
means such act or omission on the part of the instrumentality of the State,
that is say , public servants, punicable by law or the time being in force, as
reliable to life, liberty, and dignity of the individual and nothing else.

3.(b)

4.

whether violation of Human Rights, as
recognised by International Treaty, Covenant or agreement, to which India is
a party in the absence of any law, made by the Parliament therefore under the
statutory provisions adumbrated in Article 253 read with Article 51 (c) and
Entry Nos. 12 to 14 and 95 of List I and Entry No.65 of List II of the VIIth
Schedule of the Constitution can be reckoned with and given effect to, either
by HRC or superior Courts of jurisdiction High Courts Supreme Court creatures
of the Constitution?

Violation of `Human Rights', as
recognised by International treaty, Covenant or agreement, to which India is
a party, in the absence of any law made by the Parliament therefore under the
statutory provisions adumbrated under Article 253 read with Article 51(c) and
entry Nos12 to 14 and 95 of List I and Entry Nos65 of List II of the VIIth
Schedule of the Constitution can not be reckoned and given effect to either
by HRCs or superior Courts of jurisdiction High Courts and the apex Courts
creatures of the Constitution. However, there can be no prohibition for the
courts in India
to apply the principles underlying such covenants, treaties etc. in the
process of interpretation, if they are not in conflict with municipal law or
not opposed to fundamental rights of Chapter III of the
Constitution.

5.

Whether HRC is not a Court or Tribunal
constituted under Article 323-A or 323-B of the C Constitution of India?

HRC is not a Court or Tribunal of a Court
constituted under Article 323-A or 323-B of the Constitution. But it is
a Court constituted under Section 30 of PHRA, as a Special Court in the cadre of a Court
of Session with powers of a Court of original jurisdiction.

6.

Whether the constitution and designation
of a Court of Sessions, in each and every District, as HRc a special Court
with powers of a Court of original jurisdiction for trial of all offences,
arising out of violation of Human Rights, irrespective of their
classification into various categories of offences - First Class, Second
Class or exclusively triable by a Court of Session - is permissible in Law?

The Constitution and designation of a
`Court of Session' in each and every District as HRC a `Special Court' - with
powers of a Court of original jurisdiction for trial of all offences arising
out of violation of `Human Rights', irrespective of their classification into
various categories of offences - First Class, Second Class or exclusively
triable by Court of Session is permissible under Law.

7.

Is it legally permissible for the
relevant provisions of the Code to be swung into operation for the trial of
offences out of violation of Human Rights, excepting matters in respect of
which specific provisions had been made in PHRA, by virtue of the sanguine
provisions, in the shape of Section 4, 5 and 26 of the Code?

It is legally permissible for the
relevant provisions of the Code to be swung into operation for the trial of
offences arising out of violation of `Human Rights', excepting matters in
respect of which specific provisions had been made in PHRa, by virtue of
sanguine provisions, in the shape of Section 4, 5 and 26 of the Code.

8.

Whether it is desirable to expressly
provide for an appeal/revision in PHRA to the High Court against a decision
of HRC?

There is no need at all to expressly
provide for an appeal/revision in PHRa to the High Court against the decision
of HRCs.

9.

Whether it is necessary for this Court to
make and issue General rules prescribe Forms etc., for regulating the
practice and proceedings of HRCs
under Article 227 of the Constitution

There is no necessity or need for this
Court of make and issue General Rules and Prescribe Forms, etc., for
regulating the practice and proceedings of HRC under Article 227 of the
Constitution.

10.

Whether it is desirable to incorporate a
specific provision in PHRA as to the inapplicability of anticipatory bail
provision, as contained in the Code?

It is not at all desirable to incorporate
a specific provision in PHRA as to the inapplicability of anticipatory
bail provision in the Code.

11.

Whether it is desirable to frame a rule
fixing a time-limit for trial and disposal of cases, arising under PHRA?

It is not desirable to frame a rule
fixing a time limit for trial and disposal of cases arising under PHRA,
except to make an emphasis that every earnest effort shall be taken to try
and dispose of those cases as expeditiously as possible.

12.

Is it not incorrect to state that HRC,
being a Criminal Court, has no power to grant compensation, except under
Section 357 of the Code?

It is correct to state that HRC, being a
Criminal Court has no power to grant compensation, except under Section 357
of the Code.

13.

Whether it is desirable or necessary that
HRCs are empowered to grant compensation subject to a prescribed limit to the
victims y excluding the jurisdiction of the Civil Courts, with a discretion
for such Courts of permit the Government - Central or State, as the case may
be to recover the whole or part of the compensation so awarded from the
officer(s), who are found guilty and to award interim compensation to the
victims, befitting such reliefs?

It is desirable and necessary that HRC,
by way of amendment to be brought in, must have to be invested with the
exclusive jurisdiction, in the matter of award of compensation to the victims
of Human Rights offences, without prescribing any limit therefore, ousting
the jurisdiction of civil court and vesting public law jurisdiction inhering
in Writ Courts - High Courts and Supreme Courts reliable only to the award of
compensation for violation of fundamental rights of citizens - with a
discretion for such courts to permit the Government - Central or State- to
recover whole or part of compensation from the officer(s) who are found
guilty and to award interim compensation to the victims, befitting such a
relief. Until necessary amendments of PHRA on such lines are m,made,
the existing jurisdiction of various forums in the matter of award of
compensation to the victims of Human Rights offences will not get affected
and continue to operate.

14.

Is it not incorrect to state that the scheme
of PHRA in constituting NHRC, SHRC and HRC indicates, in no uncertain terms,
that NHRC and SHRC are akin to Commissions of Inquiry set up under CIA and
have no powers to give a definite judgement in respect of offences, arising
out of violation of Human Rights and are constituted with the object of
creating awareness of Human Rights at the Governmental level and public at
large, except the fact that they are permanent Standing Commission, while in
sharp contrast, the only institution, which could inquire into, adjudicate
upon and punish for violation of human rights is the HRC - first of its type
anywhere in the world?

It is correct to state that the scheme of
PHRA in constituting NHRC,SHRC and HRC indicates, in no uncertain terms, the
NHRC and SHRC are akin to the Commission of Inquiry set up under CIA and have
no powers to give a definitive judgement in respect of offences arising out
of violation of Human Rights and are constituted with the object of creating
awareness of Human Rights at the Governmental level and the public at large
excepting the fact they are permanent Standing Commissions, while in sharp
contrast, the only institution which can inquire into, adjudicate upon and
punish for violation of Human Rights is HRC - first of its kind, anywhere in
the world.

The Human Rights Commission - NHRC and
SHRC have only powers to recommend to the concerned Government for interim
relief to the victims of Human Rights violation and definitely have no powers
to pass orders interim or final, pending inquiry.

16.

Is it correct to state that PHRA
recognizes the principle that locus stand must stand expanded, in the sense
of allowing or permitting, apart from the aggrieved party, anyone on his/her
behalf to move HRC for redress of his/her grievances?

It is crystal clear that this Act - PHRA
to a certain extent relaxes the Rule relating to locus stand, in the matter
of lodging or preference of a complaint before Human Rights Commission, in
sub-clause (a) of section 12 thereof, as we have indicated earlier. However,
the locus stand principle is kept in tact in the matter of approaching HRCs
for redress of grievances of affected parties.

17.

Is it correct to state that the rigidity
of IEA does not bind HRC, because human justice is not to be fettered by Sir
James Pitt Stephen's prescription of yore?

On the fact of Section 2(1) of the Code
defining `judicial proceeding', it cannot at all be stated that the
proceeding before HRCs is not a judicial proceeding. Once a conclusion is
reached that the proceeding before HRC is a judicial proceeding, it cannot at
all be stated that IEA is not at all applicable to the proceedings, the
rules of evidence contained therein will have a full sway in the matter of
determination of questions arising for consideration in such proceedings. Law
of evidence as a now available is rather inadequate to meet the situation and
therefore it is, certain amendment is called for to IEA in order to contain
recurrence of occurrence in police lock-ups and jails that emanated at the
hands of the instrumentality of the State. until the amendment, as suggested
by the Law Commission, in its 113th report, is brought about, the victims
of Human Rights offences have to face concomitant obstacles in proof of
such offences before HRCs.

18.

Whether HRCs are required to have a
change in the outlook, particularly in involving custodial crimes and exhibit
more sensitivity and adopt a realistic - rather

No case involving major crimes, such as
custodial deaths has been disposed of by any of HRCs in this State attracting
the attention of this Court. Such being the case, the outlook of such courts
in the than a narrow and technical approach? Disposal of such cases, is
beyond one's comprehension and therefore, the question of issuing guidelines
for change of outlook will never arise for consideration. HRCs in the State
will have to exhibit more sensitivity and adopt realistic rather than narrow
and technical approach in the disposal of such cases in the future ahead.

19.

Whether the usage of expression, `specify
a Public Prosecutor' , in Section 31 of PHRA can be read to mean a
Public Prosecutor, appointed under Section 24 of the Code?

Without a Special Public
Prosecutor, as contemplated under Section 32 of PHRA, HRCs cannot at all
function. Such being the case, it behaves upon the State Government to take
immediate steps for the appointment of a Special Public Prosecutor for
conducting cases of HRCs.

20.

Whether a direction can be issued to the
Government for the appoint of a Special Prosecutor, in accordance with the
salutary provisions adumbrated under Section 31 of PHRA, within a time frame,
if no such attempts have been made till now?

Court can definitely issue a direction
for the appointment of a Special Public Prosecutor for conducting cases in
HRCs within a time frame. However, Court is not issuing any such direction,
in the fond trust and hope that the State Govt., even without issuance of any
such direction in this regard, would hasten and complete the appointment of
Special Public Prosecutors to all HRCs in this State in accordance with law,
within a period of two months from the date of receipt of a copy of this
Order.

21.

Whether by taking into consideration the
sordid fact of signal importance that the victims of Human Rights Violation
are on the face of application of the relevant provisions of the Code
reliable to lodging of a complaint or information, in respect of a cognizable
offences to approach the very same agency for investigating their complaint,
which in the first instance got involved in the Commission of Human Rights
offences against them a facet going against the very essence of natural
justice and fairplay - it is permissible to find a solution in the existing
state of affairs for the constitution of a SIT for investigation of Human
Rights offences of cognizable nature by purposeful and meaningful
interpretation of Section 37 of PHRA for the purpose of advancement and in
aid of implementing the objectivity sought to be achieved thereby?

In order to get over the difficulties
Court have pointed out, it would be better in the interests of all concerned,
for the Govt., to constitute SITs in such numbers as would be necessary to
meet the situation. Court trusts and hopes that the Govt., would
initiate necessary steps for the constitution of SITs as expeditiously as
possible. This point is answered accordingly.

22.

Since the very enactment of PHRA is
mainly for curbing Human Rights violations and for punishing the perpetrators
of Human Rights offences, who are none-else than public servants, is it correct
to state that the provisions of Section 197 of the Code cannot be made
applicable, inasmuch as the same must have to be construed to have been
dispense with?

It is not correct to state that Section
197 of the Code cannot be made applicable, inasmuch as the same must be
construed to have been dispensed with in prosecution of cases, arising out of
Human Rights offences

23.

Is it necessary for a label or a report
to be affixed to the complaint of offences arising out of violation of Human
Rights that it is a fit case for launching prosecution, before HRCs a
condition precedent for the wheels of criminal law to be set in motion?

It is not necessary for a label of a
report to be affixed to the complaint of offences, arising out of violation
of Human Rights that this is a fit case for prosecution before HRCs a
condition precedent for the wheels of criminal law to be set in motion.

24.

Is it
legally permissible for this Court in case, it comes to the conclusion that
PHRA is materially defective in such a way, as is not possible to implement
its provisions in ` as is where is state' for achieving the object, for which
the same had been enacted to issue a Mandamus to the Union Government to
formulate and frame adequate statutory provisions for giving succour and
relief to the citizens of this country, whose rights, it is said, it is said,
are being violated day in and day out?

Court
however, found that certain deficiencies, numbering three or thereabouts were
attributed in this PHRA and if those deficiencies stand rectified by way of
amendments by adding or creating a new offence of `torture' which affects the
dignity of the individual in IPC and introducing a new provision, in the
shape of Section 114-B in IEA revising the burden of proof regarding Human
Rights Offences, as indicated by the Law Commission in its 113th report,
besides investing power of exclusive jurisdiction with HRCs to make award of
compensation to the victims of Human Rights offences, prescribing no limits,
ousting the jurisdiction of Civil Court and vesting Public Law jurisdiction,
inhering in the Writ Courts - High Court and Supreme Court relatable only to
the award of compensation for violation of fundamental rights of a citizen
with a discretion for such courts to permit the Government, Central and State
to recover the whole or part of it from the officer(s) who are found guilty
and to award interim compensation befitting such relief, by making suitable
provision in PHRA by way of amendment, the implementation of PHRA will stand
on a better pedestal. Court trusts and hopes that the Union Government
will very soon bring necessary amendments of IPC, IEA and PHRA, as Court had
indicated for giving succour and relief, in a better way, to the citizens of
this country whose Human Rights, it is said, are being violated day in and
day out/. Court may, however, point out that it is not legally
permissible for this Court to issue a Mandamus to the Union Government to
being in amendments to the enactment's.

25.

Whether the Court of CJM, Periyar
District at Erode a designated HRC has the necessary and requisite power
under PHRA to entertain the petition of the Tamil Nadu Phazhangudi Makkal
Sangam represented by Mr. V.P.Gunasekaran, B.E. General Secretary?

The Court of CJM, Erode HRC a Criminal
Court, not having any powers of writ jurisdiction under Article 226 of the
Constitution, cannot at all entertain the petition presented before it by the
Tamil Nadu Pazhangudi Makkal Sangam represented by Gunasekaran, General
Secretary for the relief of a nature grantable in writ jurisdiction.